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Court Wins

Board Erred When It Found the Veteran Could Perform Sedentary Work

Alyse Phillips

January 23, 2018

Updated: June 20, 2024

Court win tdiu

Summary of the Case

The Veteran served honorably in the United States Marine Corps from December 1967 to October 1969.  He worked as a parachutist, and was injured when a jet explosion knocked him off the plane he was working on. He was subsequently put on the Disability Retired List.  VA later awarded service connection for the Veteran’s ankle and hip disabilities.  After service, he worked a series of temporary and seasonal jobs.  Over the years, he reported his service-connected disabilities were getting worse, and requested entitlement to TDIU.

VA denies TDIU

The Veteran underwent several VA examinations, during which examiners noted difficulty walking, standing, and sitting for long periods of time. From 2003 to 2011, VA denied higher ratings, to include entitlement to TDIU, several times.  The Veteran appealed to the Court of Appeals for Veterans Claims in 2008 and 2011.  Both appeals resulted in a Court order noting the Board erred in denying higher ratings.

Sedentary Work

In 2014, the Veteran attended another VA examination, in which the examiner opined he could not do any physically active work.  The examiner noted the Veteran could perform sedentary work as long as he was able to stand up twice per hour to relieve pain.  The Board subsequently referred the issue of entitlement to TDIU to the Director of Compensation for an opinion.  The Director concluded entitlement to TDIU was not warranted because he found the Veteran was not unemployable in all environments. The Board denied TDIU in February 2016 because it found the Veteran could perform less strenuous or sedentary types of work.

CCK appeals to Court

In its most recent decision, the Board noted the Veteran had a high school education and had only performed temporary labor in the past.  It also noted the Veteran could not perform any type of labor that required prolonged standing and full use of his hip and ankle.  It nonetheless denied TDIU because it found he could perform sedentary work.  CCK argued, and the Court agreed, that the Board erred when it failed to recognize evidence that the Veteran could not sit for long periods of time.

CAVC agrees with CCK’s arguments

The Court found sitting is a “hallmark of sedentary employment.”  It determined the Board failed to adequately explain its conclusion that the Veteran could perform sedentary work in light of this evidence.

The Court also found the Board erred when it failed to address the reasonably raised issue of whether the Veteran was only capable of marginal employment.  It noted the Veteran had only worked seasonal and odd jobs and had described living “hand to mouth.”  In light of this evidence, the Board needed to consider whether the Veteran was capable of earning a living wage.  Thus, the Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.

To read the Court’s decision, click here. 

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse